Be the finch

Think things are hopeless? Republicans control it all?I just saw a hawk flying straight towards my house, being chased by a dozen small finches. Be the finch.

Nai-post ni Shelley Powers noong Lunes, Hulyo 17, 2017

But his emails…

Social media is abuzz with the proof of Donald Trump Jr’s collusion with Russian officials. He actually released the emails containing the proof on Twitter, but only because the New York Times was about to release content from the emails.

Continue reading “But his emails…”

Groups Challenge Trump’s Terminator two-fer order

Donald Trump at rally

NRDC, The Communication Workers of America, and Public Citizen just filed a lawsuit against Trump’s infamous “two-fer” rule. This is the rule I’ve designated the Terminator Rule.

From the lawsuit:

To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs and without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons.

First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.

The Terminator rule is nonsensical in the extreme and violates all administrative procedure and law when it comes to forming regulations and rules. To instruct agencies to only include costs, not benefits, virtually cripples the federal government.

I have to wonder at this time if Trump even has access to lawyers. If so, where did they get their law degrees? Trump University?

I’ll be following this case on PACER.

Photo by Gage Skidmore CC BY-SA 2.0

The Army Corps Decision on Dakota has serious ramifications

Dakota pipeline protest

The Army Corps of Engineers announced Tuesday it would approve development of the last section of the Dakota pipeline. In a cryptic letter, the Corps announced it was terminating the Environmental Impact Statement process in the Federal Register. The reason? Trump told them to do so.

As former State Department lawyer Keith Benes said to the Washington Post, the Corps can’t just drop the EIS process for arbitrary reasons. And Trump demanding they do is an arbitrary reason.

Keith Benes, a former State Department lawyer who helped oversee pipeline permitting decisions under the Obama administration and now works as an environmental consultant, said in an interview that opponents could mount a strong legal challenge because the only justification the Army gave for terminating its environmental review was the president’s Jan. 24 directive. The agency had been seeking public input on whether to consider an alternate pipeline route, and the comment period was due to close Feb. 20.

“Supreme Court precedent is really clear that agencies can change their minds about policies, but they need to provide a reason,” Benes said, noting that the justices most recently upheld this position in the 2009 case FCC v. Fox Television Stations, Inc. “The president telling you to change your mind is not enough of a justification for changing your factual finding.”

The Corps decision was sudden and unexpected. The Corps had already filed a notice to the Federal Register asking for comments about the EIS scope, the first step in the process. Until this week, there was absolutely no indication that the Corps was planning on terminating the EIS.

Trump’s administration has completely disregarded environmental law, not to mention tribal rights and treaty in this decision. Yes, the decision can and will be successfully challenged in court. But there’s more at risk than our water with this decision.

All Federal Agencies are bound to follow laws in their actions. One of the laws is the National Environmental Policy Act or NEPA. Though agencies can follow different routes within the NEPA framework, they can’t work outside of it. Not unless expressly given permission to with other laws. There is no other law at play with the Corps Dakota Pipeline decision.

The Army Corps not only dropkicked NEPA to the curb, they pissed on it in passing. And they did so specifically because of a demand from the Trump administration. The Trump administration action demonstrates either a profound ignorance of a law that has been in existence for decades, or that the administration considers itself not bound by the law. I suspect the latter.

The Executive Branch of the government’s primary duty is to uphold the laws of the United States. Trump cannot just ignore the laws because they don’t suit him. To do so is to introduce a level of chaos we have never seen before in our history.

Photo courtesy Fibonacci Blue CC BY 2.0

Don’t Make Gorsuch into a Purity Test for Democrats

Protest against Gorsuch appointment

I normally agree with much of what Think Progress writes, but not in one of its latest pieces on how Senate Democrats stand on Gorsuch appointment. It’s interpretation of their stand is obvious from subheadings of “Team Spine”, “Team ¯\_(ツ)_/¯”, and “Team Trump”.

I am not happy with a Gorsuch appointment because of his strong beliefs against the Chevron Defense. This legal standard has allowed federal agencies to survive challenges to laws typically related to the environment and endangered species. He’s also a conservative judge when we had a chance to appoint a moderate who would actually make decisions based on the law, not ideology.

At the same time, Gorsuch is a much better option than some of the judges Trump was considering. And these latter judges may be up for consideration in the next few years if another Justice retires or dies. Gorsuch has demonstrated a willingness to buck conservatives in decisions if he interprets the law in a way that’s independent of their reasoning.

If I were a Democratic Senator, I wouldn’t vote for Gorsuch, but I wouldn’t filibuster his appointment, either.

By not voting for Gorsuch, I’m signaling that I believe the seat he’ll feel is a stolen seat. I’d want him to know that this “stolen seat” legacy will follow him throughout his years, and his decisions. I’d want him to think about this legacy, especially in light of his professed love of the law. I’d want him to remember that Merrick Garland is highly qualified, more experienced, and was lawfully appointed by the President of the United States.

However, by not filibustering him, I am acknowledging that he is a better option than what we could face from Trump. It’s a long two years until the Senate race when we can hopefully take back the Senate.  The Senate Republicans will destroy the SCOTUS filibuster rule if Democrats filibuster Gorsuch. Guaranteed.

Gorsuch will still be judge, but we’ll have lost the ability to force in-depth, stringent confirmation hearings for future appointees; hearings that may cause some Senate Republicans to question whether what’s being said in these hearings is worth the possible hit in their upcoming re-election bid. Because there’s a whole lot of Republicans coming up for re-election along with the Trump administration in 2020.

With the filibuster in place, Senate leaders are going to be more willing to allow for lengthy, robust questioning during the committee hearings, in hopes of appeasing those who might be thinking of filibustering the appointment. Without the threat of filibuster, why should they waste time when they know the control the votes to just vote the person in?

A longer confirmation process may expose information that not only is game changing for Democrats but could be game changing for some Republicans. Republicans who might actually join the Democrats…especially if they’re coming up for re-election.

That’s my take. Others, including many Democratic Senators, have different takes. Regardless of how each Senator handles the Gorsuch appointment, one thing I’m adamant about: I’m not turning this into a purity test for Democrats.

Purity tests, inspired by Sanders and sledgehammered by Jill Stein, helped us lose the election and put Trump into the Presidency. Trump’s Presidency has already hurt people. Trump’s Presidency has already killed people.

That Garland isn’t a Supreme Court Judge is the Republicans’ fault. That Gorsuch and not Garland is the current choice is Trump’s fault. Trump, his cabinet, and the Republican-controlled Congress are, and will remain, my only targets. My entire focus is to limit the damage this Congress and President can do, and to kick them all out in the next three federal elections. To me, nothing else matters.

Too much is at stake to play purity games.

Photo courtesy of Elvert Barnes CC BY-SA 2.0